Dear Department for Work and Pensions,
Under ESA regulations when a repeat claim is made where a claimant had previously been found fit for work and could not show a new or significantly deteriorated condition, the claimant could not be 'treated as' having Limited Capability for Work and no ESA would be payable until a Work Capability Assessment was carried out and a decision made.
The Employment and Support Allowance Regulations 2008, as revised, Regulation 30.(2)(b)(ii) would apply.
A claimant in such circumstances, who wanted to claim benefit, would have to claim JSA until the Work Capability Assessment was carried out and a decision made.
If an award of ESA was made then any group component and premium payable would be back-paid to the end of the 13th week of the repeat claim.
Under Universal Credit the situation is different as a claimant in such circumstances would continue to receive UC at the standard rate whilst awaiting a Work Capability Assessment and decision.
Accordingly in The Universal Credit Regulations 2013, as revised, there is no equivalent to ESA regulation 30.(2)(b)(ii).
The lack of such a regulation in the UC legislation means that a claimant making a repeat request for a Limited Capability assessment in such circumstances should be treated the same as a first time requester for Limited Capability and a new WCA referral made despite the previous Fit for Work decision.
In particular it would mean that if LCWRA is awarded then it should be backdated to the start of the 3rd month following the month in which medical evidence was first provided.
It would also mean that there is no legal deterrent to UC claimants making multiple Limited Capability requests with the same condition, even following a previous Fit for Work determination.
1) Please would you supply, or provide clear links to, any guidance for staff or decision makers regarding the situation when a UC claimant who has previously been found Fit for Work following a WCA then makes a new, repeat, request for assessment for Limited Capability in UC.
In particular any guidance on deterring claimants from making multiple repeat requests, and any guidance on their status if allowed to make a repeat request especially in relation to the waiting 3 month waiting period and possible back-payment.
If referring to the ADM guidance then please provide the Volume, Chapter, and Paragraph number(s) for the particular guidance that applies.
2) Please provide copies of, or clear links to, any Universal Credit regulation that states that a claimant in such a situation should not be classed as having Limited Capability for Work for the period preceding the WCA decision, and should not receive any back-payment for the period preceding the WCA decision if longer than the 3 months waiting period.
Indicating the number and any sub-clause of the particular regulation that would apply would be an acceptable reply.
If no such guidance, or no such regulation, exists then please state so.
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